This is an open letter to all members of Drive Canada. If you receive this will you please pass it on. I will be forwarding this to Drive Canada with a request to have it sent out to everyone on the e-bulletin list as I believe everyone should hear both sides of the issues. I also want to offer some solutions so please read this entire letter.
The issues I am referring to are:
1. The Drive Canada election process in 2009.
2. The proposed bylaw changes.
3. Some information in the October e-bulletin and the November e-bulletin.
1. When I decided to send in my nomination for the board of directors I checked the 2008 AGM minutes for the date of the 2009 AGM as the bylaws state that "Nominations must be in the hands of the Secretary no later than seventy-five (75) days prior to the meeting." Drive Canada is the only not-for-profit that I belong to that does not send out a "Call for Nominations" notice. Those of us who were interested in running for the board needed to be clairvoyant as there was no date set for the 2009 AGM.
I started to contact DC on Sept. 10 to find out what the date of the AGM would be. I e-mailed the entire board on Sept. 11 as flights to Toronto are expensive and it is very difficult to find hotels close to exhibition place during the Royal Agricultural Winter Fair. We needed to know the date to take advantage of seat sales.
I received the following e-mail from DC on Sept. 16.
"The Board met last evening and has set Saturday, November 14, 2009 for a Special General meeting at 10am and the Annual General Meeting at 1pm. Notice for the meetings will be circulated to all voting members as of September 30, 2009. The number of nomination have not exceeded the anticipated vacancies, so an election is not required. The Board of Directors will meet on Sunday morning, November 15, 2009 at 10am. All above meetings will take place in Toronto at or near the Royal Winter Fair."
The statement that an "election is not required" led all of us to believe there had been at least 4 present directors who had chosen to not run for the board as the DC bylaws state:
" d. When more nominations than Director vacancies have been received, the Secretary shall prepare ballots and mail to each: Life; Voting; designated Family Member, Affiliate and Corporate Members, in good standing as of seventy-five (75) days prior to the Annual General Meeting. Ballots shall be sent by e-mail if an address has been registered; by fax, if a number has been supplied; or by 1st class mail to the address of record, sixty (60) days prior to the Annual General Meeting. Only those ballots received by hand, mail, courier, fax or e-mail (from the member's registered e-mail address) by the Secretary, forty (40) days prior to the Annual General Meeting will be counted.
e. The Secretary shall cause to have all properly received ballots counted and all nominees informed of the results thirty (30) days prior to the Annual General Meeting. Directors so elected shall take office at the close of the Annual General Meeting immediately following their election."
On Sept. 16 I e-mailed all of the present DC board with this request "As the nominations for the board did not exceed the vacancies I would appreciate knowing who has been nominated to the board of directors." I did not receive a reply.
We were all wondering what the Special General Meeting was about and on Sept. 16 Sue Billings sent the following request to the board of DC "What is the subject(s) of the Special General meeting?" and did not receive a reply.
When we received our meeting notices it was obvious that Drive Canada is non-compliant with its election bylaws. The nominations exceeded 7. The DC bylaws are very clear that "There shall be a minimum of five (5) and a maximum of seven (7) directors" Bylaws are the laws of an organization and are there to protect both the members and the directors. Directors who violate the bylaws of an organization leave themselves open to legal action.
The DC board has put themselves in a very bad situation by not calling the election as required in their bylaws.
2. As for the new bylaw change proposals. The current DC bylaws state: "3. Amendments to the Constitution or By-Laws shall not be enforced or acted upon until the approval of the Minister of Consumer and Corporate Affairs Canada has been obtained." I have confirmed with Corporations Canada that they are not open on Saturdays and therefore the bylaws can not be approved between the Special Meeting and the AGM.
Is the current board planning on violating another bylaw by trying to enforce these changes before they are registered? If the current board does not respect their current bylaws why would I expect them to uphold new bylaws?
I would like to address the proposed bylaw changes. I fully agree that the Drive Canada Bylaws are in need of revision. In many places they are not clear. Although the changes speak of elections if there are more nominations than director vacancies in a region and they speak of 6 regions, they do not spell out how many directors there are per region. There are no guarantees in the current or proposed bylaws that directors must come from each of the regions. The proposed bylaws even allow the named 12 directors to appoint another 3 with no restrictions on where they must come from. All 15 of these directors would then serve for 2 full years without ever facing the membership in an election.
In my opinion before there is any attempt to expand the board it must be mandatory that each region have the same number of directors, that there be at least 2 directors from each region and that they must be elected in alternate years so that all board member's terms do not expire at the same time. I feel strongly enough about the need for a proper bylaw review process that I am publicly volunteering to chair a Drive Canada Bylaw Review Committee.
3. The most recent e-bulletin talks about needing to hold a face to face meeting to approve bylaw changes. That is the board's choice, however it is not mandatory. They may send out a notice of meeting to change bylaws only and include proxies asking a very clear yes or no for each bylaw change. Their own bylaws allow proxies to be counted towards a quorum and after this go round any proxy glitches or perceived proxy glitches should be worked out. This whole thing could be done by proxy. As I said earlier I will be very happy to chair this committee and oversee the process.
The most recent e-bulletin states the AGM need not be held before June 30, 2010. I have spoken with Corporations Canada and they tell me within The Canada Business Corporations Act where is says "shareholder" I should substitute "member" for a not for profit corporation. The Act states: Article 133. (1) The directors of a corporation shall call an annual meeting of shareholders (a) not later than eighteen months after the corporation comes into existence; and (b) subsequently, not later than fifteen months after holding the last preceding annual meeting but no later than six months after the end of the corporation's preceding financial year.
To me it is clear that the AGM must be held before Feb. 15, 2010 as the last AGM was Nov. 15, 2008.
The most recent e-bulletin also states that if the proposed bylaw changes are not approved that DC can not complete the AGM as there are more than 7 directors. There is an alternative. If the present board is serious about wanting to get on with the business of Drive Canada 5 of those who have submitted nominations may withdraw their nominations allowing the November AGM and Director's meeting to proceed under the present bylaws. When the Bylaw Review Committee finishes its work and there are new bylaws in place to guarantee regional representation those nominees may resubmit their nominations for the next election. This shouldn't be too difficult because I have been told by 2 of the present directors that they wanted to quit the board but noone was interested in taking over.
I know that there are times when we think we have a great idea and we rush full steam ahead and forget about the proper process. That is why we have bylaws and that is why we must follow the bylaws explicitly. It is also why we need people out there who will remind us when we are straying from the proper process and will bring us back to reality.
If Drive Canada wishes to represent driving nationally it must adhere to its bylaws and follow proper process.
Sincerely yours,
Iris Davies
